Citation Nr: 0430932
Decision Date: 11/22/04 Archive Date: 11/29/04
DOCKET NO. 03-10 831 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased rating greater than 10 percent
for service-connected residuals, pilonidal cyst.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jason G. Wodogaza, Associate Counsel
INTRODUCTION
The appellant had active military service from January 1971
until March 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which assigned a 10 percent disability
evaluation for the appellant's service-connected residuals,
pilonidal cyst, effective July 1, 2002.
The appellant requested a hearing in this case, which was
conducted by the undersigned Acting Veterans Law Judge in
July 2004.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107
(West 2002), and its implementing regulations, codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004), are
applicable to the appellant's claim of entitlement to an
increased rating greater than 10 percent for service-
connected residuals, pilonidal cyst. This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits.
First, VA has a duty to notify the appellant and his
representative of any information and evidence needed to
substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103
(West 2002); 38 C.F.R. § 3.159(b) (2004). Information means
non-evidentiary facts, such as the claimant's address and
Social Security number or the name and address of a medical
care provider who may have evidence pertinent to the claim.
See 66 Fed. Reg. 45620, 45630 (August 29, 2001); 38 C.F.R.
§ 3.159(a)(5) (2004). Second, VA has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)
(2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The Board initially notes that effective August 30, 2002, VA
revised 38 C.F.R. § 4.118, Diagnostic Code Series 7800, or
the criteria for diagnosing and evaluating skin disabilities.
See 67 Fed. Reg. 49,596 (July 31, 2002); see also corrections
at 67 Fed. Reg. 58,448 (September 16, 2002). Therefore, the
Board concludes that the appellant must be provided notice of
the amended regulations.
The duty to assist also includes, when appropriate, the duty
to conduct a thorough and contemporaneous examination of the
appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In
addition, where the evidence of record does not reflect the
current state of the appellant's disability, a VA examination
must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Reexamination will be requested whenever VA
determines that there is a need to verify either the
continued existence or the current severity of a disability.
38 C.F.R. § 3.327(a) (2004). Generally, reexaminations are
required if it is likely that a disability has improved, if
the evidence indicates that there has been a material change
in a disability, or if the current rating may be incorrect.
Id.
The appellant in this case was not previously afforded a VA
examination with respect to the issue here on appeal. As
such, the appellant should be afforded a VA examination for
purposes of ascertaining the current severity of his service-
connected residuals, pilonidal cyst.
Accordingly, this case is remanded for the following:
1. The appellant should be requested to
provide any additional relevant medical
evidence within his possession as well as the
source(s) of any other relevant and
previously unobtained medical evidence.
2. Upon completion of the above, the
appellant should be scheduled for a VA
examination by a physician with the
appropriate expertise in diagnosing and
evaluating skin disabilities. The examiner
should thoroughly review the claims folder in
conjunction with evaluating the appellant.
The examiner should specifically address the
following:
a) What is the current severity of the
appellant's residuals, pilonidal cyst?
The examiner must provide accurate and
fully descriptive assessments of all
clinical findings resulting from the
appellant's service-connected residuals,
pilonidal cyst. In addition, the
examiner must also address the presence
or absence of the specific criteria set
forth in VA's rating schedule for
evaluating skin disabilities, to
include, but not limited to, the size
and location of any scarring, any
exfoliation, exudation, itching,
lesions, disfigurement, ulceration,
crusting, and systemic or nervous
manifestations. 38 C.F.R. § 4.118,
Diagnostic Codes 7800 et seq. (2000).
b) With respect to the amended criteria
for evaluating skin disabilities, the
examiner should specifically comment
upon the size and location of any
disfigurement or scarring, the
percentage of the entire body affected
by the appellant's residuals, pilonidal
cyst, the percentage of exposed areas
affected by the appellant's residuals,
pilonidal cyst, the need for and
frequency of any therapy during the past
twelve month period, any limitation of
motion, any visible or palpable tissue
loss, any underlying soft tissue damage,
and any pain and/or tenderness.
38 C.F.R. § 4.118, Diagnostic Codes 7800
et seq. (2004).
All appropriate testing in this regard should
be accomplished, to include photographs of
the areas affected by the appellant's
residuals, pilonidal cyst. A complete
rationale for any opinion expressed must be
provided. If the examiner cannot answer the
above without resorting to speculation, then
he or she should so state.
3. Upon completion of the requested
development, the appellant's claims folder
should be reviewed to ensure that all the
foregoing development has been conducted and
is completed in full. If it is determined
that any development is incomplete, then
appropriate corrective action should be
taken.
4. The appellant's claim of entitlement to
an increased rating greater than 10 percent
for service-connected residuals, pilonidal
cyst should then be reconsidered. If the
benefits sought on appeal remain denied, then
the appellant and his representative should
be provided with a supplemental statement of
the case (SSOC). The SSOC must contain
notice of all relevant actions taken on the
claim for benefits, to include a summary of
the evidence and applicable law and
regulations considered pertinent to the issue
currently on appeal, as well as any
amendments to such law and regulations. See
above discussion regarding changes to the
criteria for evaluating skin disorders. An
appropriate period of time should be allowed
for a response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, provides for
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.43 and
38.02.
_________________________________________________
Vito A. Clementi
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).